Geltner History of Corporal Punishment

History of Corporal Punishment

G. Geltner

* To appear in

D. Weisburd and G. Bruinsma (eds.) Encyclopedia of Criminology and Criminal Justice

(New York: Springer-‐Verlag, [forthcoming, 2012])

Overview

In the gallery of penal practices, corporal punishment, or the dispensing of bodily harm in
response to or as a deterring measure against crime, occupies a stable position as a marker
of cruelty, especially when condoned by a central authority such as a state. From Cesare
Beccaria to Émile Durkheim to Max Weber, and especially under the more recent and
diverse influences of social philosophers Norbert Elias and Michel Foucault, modern
students of punishment have construed cultures that allow physical pain to be legitimately,
let alone publicly, inflicted as out of step with the process of civilization and as retaining a
relic of an unenlightened past. Corporal punishment, however, has a far more complex
history than a long and steady fall from grace, an inverse trajectory as it were to the
progress of humanity (Scott, 1938; Yelyr, 1941). For, on the one hand, the past uses of
corporal punishment were never devoid of reason, at least in the sense that it was mostly
meted out proportionately, gradually, and with a view to achieving social goals far beyond
individual suffering, such as shaming and paving the way to an offender’s reintegration. And,
on the other, it is still used today: openly in certain milieus and surreptitiously in others,
with some indications that it is nowhere near to being abolished. Indeed, some scholars
have recently argued for an expansion of corporal punishment as a solution to the crisis of
modern penology (Newman, 1983; Moskos, 2011).

Fundamentals

For the purposes of this discussion, corporal punishment will encompass the licit infliction of
intentionally non-‐lethal bodily pain, temporary or lasting, including physical impairment or
aesthetic alteration meant to reduce capacity and create social disability. So defined, and
observed from a broad geographical and historical perspective, corporal punishment
appears to be a common measure that, moreover, rarely serves as an exclusive penalty
typifying any particular civilization, be it modern or pre-‐modern; usually it was one option
among several practiced in a given context, and different cultures made recourse to it in
different judicial environments and with changing frequency and goals.

Antiquity

Corporal punishment, like most current penal measures, can be traced back to the earliest
civilizations whose records have come down to us, such as the early law “code” of Ur-‐
Namma, ruler of the Sumerian city of Ur (2112-‐2095 BCE) and founder of its third dynasty.
This casuistic text addresses a host of cases, running the gamut from labor to civic to
criminal law, and in doing so not only attests the degree of judicial sophistication attendant
upon a complex society, but also denies the ubiquity of ancient corporal punishment
specifically and of physical lex talionis (“eye for an eye”) in general. The vast majority of the
text’s 85 surviving promulgations prescribe monetary penalties or rewards and a mere
handful order the death penalty. On three occasions alone is the infliction of non-‐lethal
physical harm considered meet: “If a man fractures another man’s skull in a fistfight, they
will flog him 180 times” (§22); “If a freedman beats a slave, they will whip him sixty times
with a strap and sixty times with a belt” (§26); and “If a slave girl insults someone who is
acting as her mistress they will rub her mouth with one sila of salt” (§30). To be sure, legal
texts do not always convey penal realities, but at least at the normative level it appears that
Ur-‐Namma’s policies more often than not aimed at sparing the rod. Even in cases amenable
to the employment of the lex talionis, monetary fines are often preferred. Thus, for instance,
“[i]f a man breaks another man’s nose with his fists, he will pay forty shekels of silver” (§ 19),
and “[i]f a man causes the loss of another man’s eye, he will pay thirty shekels” (§23).

Contrary to the common view that sees punishment as becoming physically milder over
time, the subsequent and more famous and elaborate Laws of Hammurabi (c. 1780 BCE)
illustrate a “reverse” trend of increased brutalization. Whereas physical and even capital
punishments in Ur were scarcely decreed, in Babylonian law they become all but ubiquitous.
Yet, rather than expressing a knee-‐jerk response to any and all violations, Babylonian
prescripts for corporal punishment were undergirded by several distinct rationales, which
would remain influential for centuries to come. The first was to target the “offending limb,”
an approach already underlying the fate of the misbehaved slave girl mentioned in the
previous paragraph. Thus if the son of a paramour or a prostitute disowns an adoptive
parent he would have his tongue cut off (§192); a nurse concealing the death of an infant by
obtaining and suckling another child will have her breasts cut off (§194); a reckless surgeon
would lose his hands (§218); and so forth (see also §§193, 195, 226, 253). A further model
prescribed retaliations according to the injury inflicted (“classic” lex talionis), as when a man
putting another man’s eye out or breaking his bone or teeth would suffer the same fate
(§§196, 197, 200). Last, offenders were to be maimed in body parts less immediately tied to
their crime, but in ways that nonetheless branded them as offenders of a particular sort: a
false accuser was to be marked on his brow (§127); and a slave disowning his master would
have his ear cut off (§282), as would a slave striking the body of a freedman (§205). Beating,
by comparison to these three penal modes, was uncommon in Babylonian law. Only on one
occasion is it prescribed, namely when a man strikes someone of a higher social rank, in
which case he is to be publicly subjected to sixty blows “with an ox-‐whip” (§202).

In Ancient Egypt, by contrast, beating appears to have been less common as a form of
summary justice already during the Early Kingdom (2686 BCE–2181 BCE), while a papyrus
from the reign of the Pharaoh Thutmosis IV (late 14

century BCE) records the case of a

soldier by the name of Mery who was subjected to 100 blows for false litigation. Here as
elsewhere in the ancient Near East, time brought more rather than less frequent recourse to
corporal punishment (VerSteeg, 2002). A royal decree issued under Seti I (late 13

century

BCE) orders the infliction of 200 blows, five open wounds, and a monetary fine against civil
administrators who illicitly requisition free personnel or slaves, or detain a boat or its crew
belonging to a foundation for Osiris of Abydos. Anyone encroaching upon the boundaries of
the same foundation or stealing an animal from it was to be punished by having his or her
nose and ears cut off and then being put to work as a cultivator (Lorton, 1977). Brutalization
there may well have been, yet here as well as in other contemporaneous documents, there
is an explicit proportionality between the offense, the number of blows, and the monetary
fine or status change to be imposed upon the offender. Maiming, to take another example,
is clearly meant to go beyond the infliction of pain: it is used to deter and shame by
associating mutilation with and thus defining what is a major transgression. Practically,
moreover, such disfigurement made escape more complicated.

These and other strategies were associated with physical punishment in early Vedic India
(1700-‐1100 BCE), although here disabling the culprit appears to have been paramount. The
range of punishments is also somewhat broader as well as more clearly gradated. Measures
included whipping, beating with a broken bamboo cane, driving iron nails into the body,
dripping hot oil into orifices, starvation (also an extremely painful form of capital
punishment), branding, and various forms of maiming. More consistently than elsewhere in
the ancient world, dismemberment in India was linked functionally and symbolically to the
offending limb. For instance, someone who urinated in a forbidden place would have his
penis cut off, a blasphemer would have his lips cut out, a thief his hand, and so forth. Most
of these penalties, however, were never used summarily or gratuitously, but rather had to
follow proper admonition, reprove, and fines. At least in principle, only when these failed to
deter or prevent recidivism could a judge resort to corporal punishment. And even then
certain and telling limitations were put in place, which served to reinforce social hierarchies
and boundaries. For example, the more flexible (and thus potentially more lenient)
punishment of whipping was meant by default for women, infants, the mentally ill, the poor,
and the sick; and hot oil and iron could only be used against (and in turn defined) major
offences, such as blasphemy by a Sudra against a Brahmin or a king. A distinct feature of
ancient Indian branding, finally, was that it was usually carried out on one’s forehead and
indicated the type of crime committed: female genitalia signified incest, a dog’s foot the
theft of gold, and so on. A branded person was often also banished from his or her city
(Doongaji, 1986).

While Egypt, India, and other early civilizations employed various principles to regulate the
use of corporal punishment, no uniformity in its actual application seems to have emerged.

A collection of some 200 early Hittite prescripts from the 13

century BCE, for instance,

contains but a single unambiguous reference to penal amputation, namely the practice of
cutting off the nose and ears of a slave who burglarized a house (Hoffner, 1997, §95). One
other reference, which may or may not allude to beating a thief with a spear (§101),
mentions it as a past practice, to be replaced by a monetary fine. Ancient China is another
case in point. While Chinese law had no qualms about using physical torture to obtain
confessions, and despite the common use of capital punishment, attitudes toward corporal
punishment throughout that long period were discerning and even ambiguous. Under the
Han Dynasty (206 BCE-‐220 AD) mutilations such as tattooing and cutting off the nose and
feet were thought to be cruel and were commuted to extensive beatings (“bambooing”) and
various forms of hard labor. The shift from permanent to temporary harm had unexpected
consequences, however, as the abuse of bambooing could and apparently often did end
with death. To amend this situation, later Han ordinances repeatedly reduced the number
of blows and defined the specific manner in which they were to be administered in order to
ensure culprits’ survival (Hulsewé, 1955). The marginalization of corporal punishment and
especially of maiming continued under later dynasties. The T’ang-‐Yin-‐Pi-‐Shih, a popular
compendium of 144 legal cases stretching from c. 300 BCE to c. 1100 CE (van Gulik, 2007),
contains only three instances of flogging, one following a son’s unintentional killing of his
mother in the context of an attempt to prevent her from hurting a thief just apprehended
(48A); another after the death of a food thief killed by his victim (48B); and a final one in
response to a youth’s entry into another’s house at night (70A). The farther we look in time
and space, then, the more diverse and complex the use of corporal punishment in antiquity
becomes. Nor can we trace a steady decline over time in the application of this group of
punishments or its commutation into seemingly milder measures such as incarceration or
fines.

Greece and Rome

The quantity and variety of evidence surviving from Ancient Greece allows us to explore
new or perhaps heretofore-‐hidden aspects of pre-‐modern crime and punishment. Authors
such as Isocrates (436–338 BCE), in his Areopagitus (7.39-‐42), and Plato (d. 347 BCE),
especially in Book 9 of The Laws, attained a high degree of theoretical abstraction in
discussing the goals of punishment and even challenged its very legitimacy as a social
institution. As far as corporal measures are concerned, the process we can detect in this
period is not so much a reduction in usage as a sublimation and gradual disappearance of
such penalties from the public sphere, accompanied by their proliferation in the private
sphere, especially as regards non-‐free members of society. The same process characterizes
Roman penal history to an even greater extent, as we shall see.

Written around the 8

century BCE, and possibly reflecting an earlier tradition, Homer’s

Iliad and Odyssey portray a society heavily reliant on self-‐help (private vendetta), where

often harsh punishments were determined and meted out quite simply by the party that
could. Subsequent centuries saw a gradual transition from private vendetta, to ad hoc,
third-‐party arbitrators, to judicial assemblies, and finally to quasi-‐professional courts, which
decided cases on the basis of increasingly detailed protocols, the most celebrated instances
of which were produced under Draco in 621 BCE and Solon in 594 BCE (Saunders, 1991).
Within this process corporal (but not capital) punishment largely fades from the public
domain as it becomes associated with summary justice carried out in the domestic sphere,
especially against offending slaves. Free citizens, the audience of most new laws and legal
procedures, considered corporal punishment as particularly demeaning. According to
Demosthenes (384-‐322 BCE), “the body of a slave is made responsible for all his misdeeds,
whereas corporal punishment is the last penalty to inflict on a free man” (Speeches 24.167;
and see 8.51; 22.55). Indeed, nothing could portray a ruler in more shocking terms than
reporting that he had flogged free men. Accordingly Thucydides (c. 460-‐400 BCE) observed
how efficiently one exiled soldier incited his comrades by reporting (or in this case,
misreporting) that under a certain regime “all were punished with stripes” (History 8.74.3).
And in the Athenian Constitution (35) Aristotle (384-‐322 BCE) ominously describes the
oligarchic Thirty’s rise by pointing out that they began ruling the city with three-‐hundred
“lash-‐bearers” before violently crushing their opponents.

Thus the relative absence of flogging in particular and corporal punishment in general from
most contemporary records, including legal and narrative sources, is not necessarily an
indication of these measures’ decline (Robinson, 2007). Under the radar of officialdom, but
with the latter’s consent, corporal punishment crystallized into a highly effective mechanism
for social othering, a measure particularly suitable for foreigners and non-‐free members of
society. By and large this remained the case under Roman law, which consciously drew on
ancient Greek law here as in numerous other matters. The Twelve Tables (449 BCE), a
foundational text in Roman jurisprudence, prescribes beating prior to enslavement for
anyone caught stealing in daylight. Slaves perpetrating the same offense are also to be
scourged and then thrown off the Tarpeian Rock (II.5). Beatings are to precede execution for
intentional destruction of property or grain and public verbal abuse or insult (VII.6 and 8).
Last, a child shall be beaten at the discretion of the Praetor if caught destroying or
appropriating another’s crop at night, and then forced to pay double the value of his action
(VII.4). Yet, as a sole punishment to be meted out to free adult citizens, beating became
taboo: as in Greece, so in Rome, accusing a ruler of causing bodily harm as a form of
punishment against free men was a sure way to taint his reign as especially, indeed
extraordinarily, vicious (see Suetonius, Caligula 27). A similar point was made in Late
Antiquity by several Christian authors who described the bodily suffering of their brethren
during the anti-‐Christian persecutions, which entailed beating as well as forced prostitution
(Acts of the Christian Martyrs, Agape 5-‐6 and Pionius 7).

Status continued to serve as a determining factor in the application of corporal punishment
throughout Roman history. Rome’s transition from Kingdom to Republic to Empire, and the

immense territorial expansion accompanying this process, culminated with the formal
extension of citizenship to all free men under Roman rule. Yet while the Edict of Caracalla
(212 CE) grew the political base of Rome, it also prompted a closing of the ranks among
members of the elite citizenry. In the 3

and 4

centuries CE a distinction between a class of

honestiores (nobler) and humiliores (baser) men restricted the latter’s access to numerous
legal privileges, also in the realm of penal law. In theory, flogging remained a licit penalty
only as a form of summary justice reserved for foreigners, slaves, and children, and various
offenses by these groups would have been punished in private by a paterfamilias or in
public by the organ known as the tresviri capitales (Cascione, 1999). Yet there is strong
evidence to suggest that humiliores could be collapsed into the latter group for penal
purposes. Claudius Saturninus, a Roman jurist probably writing in the early 3

century CE,

authored many of the passages relevant to corporal punishment now preserved in
Justinian’s Digest (early 7

century CE). Among his durable prescripts is one declaring: “all

those whom it is not permitted to punish by whipping are persons that should have the
same respect shown them that decurions have” (48.28.5). In other words, it was not or
rather no longer enough to be a free citizen in order to avoid this humiliating form of
punishment; the massive expansion of Roman citizenship prompted at best only a minor
reduction in the use of corporal punishment.

Judaism, Islam, and Christianity

In and beyond the physical and chronological boundaries of Greek and Roman civilizations,
three distinct religious traditions developed their own approaches to social control,
including the application of corporal punishment: Judaism, Islam, and Christianity. Tracing
these religions’ pertinent ideas and practices, while not exhaustive of long-‐term trends,
nonetheless offers a palpable link between antiquity and the medieval period, and their
joint legacy at present.

Mosaic and, later, Jewish law, espoused corporal punishment via the early adoption of the
lex talionis: “Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning,
wound for wound, stripe for stripe” (Exodus 21:24-‐25; and see Leviticus 24:19-‐20). Yet it is
with particular respect to the latter measure—flogging—that Jewish jurists stand out in
terms of the attention they paid to it and the high degree to which they promoted its
practice (Goldin, 1952). Operating under changing political fortunes and a generally
declining autonomy, and eventually spread across the Near East and Europe, Jewish
legislators turned flogging into a staple penalty, despite the measure’s minor presence in
the Old Testament. Indeed, flogging is explicitly prescribed only once in the Bible, in a
passage specifying a limit of 40 blows to which a culprit may be subjected for a single
offense (Deuteronomy 25:1-‐3). However, by the time of its completion in the early 3

century CE, the Mishnah expanded the use of penal whipping as applicable to some 168
offenses, including transgression of dietary, agrarian, and Passover laws (Makkot 3.1). Nor,

apparently, and in contrast to earlier and contemporaneous cultures, was flogging directed
at any specific social group or class, despite the claim by Flavius Josephus (c. 37-‐100),
possibly influenced by a Greco-‐Roman tradition, that the measure “is the most ignominious
for a freeman” (Antiquities 4.8.21 and 23). While corporal punishment proliferated, however,
it did so at the expense of measures such as capital punishment and kerait or death by
divine intervention. Perhaps reflecting a greater need for social cohesion under gentile rule,
the authors of the Gemara (c. 3

-‐5

centuries CE) and later commentators offered

numerous exemptions from whipping. Still, at least at the normative level, corporal
punishment remained common throughout and beyond the Middle Ages. The highly
influential medieval Jewish physicians and legislator, Maimonides (d. 1204), dedicated three
whole chapters in his Mishneh Torah (Sefer Shoftim, Sanhedrin 17-‐19) to enumerating
offenses punishable by flogging and to defining the terms of the measure’s licit use (Jacob
and Zemer, 1999). And by and large this discussion was integrated into Jewish Halacha
through it reception by Joseph Karo’s Shulchan Aruch (1563), which remains until this day
the most authoritative prescriptive text in and beyond Orthodox Judaism.

Unlike their Jewish counterparts, Islamic jurists dealt with punishment in general and
corporal punishment in particular mostly within the context of a hegemonic culture; and in
contrast with their Christian counterparts (see below), they did so in the absence of an
identifiable separation between church and state. The Koran (mid 7

century CE) enjoins

the use of corporal punishment, and especially flogging, on several occasions as either a
mandatory (ḥadd) or a discretionary (ta‘zīr and siyāsa) penalty for a range of offenses,
including slander and sexual misconduct. Subsequent oral and written traditions, however,
glossed and at times supplemented such verses, giving rise to different schools of
interpretation. For instance, while Koran 24:2 states that a “woman or man found guilty of
sexual intercourse—lash each one of them with a hundred lashes,” a later ḥadīth or oral
tradition attributes to Mohammed a sentence of death by stoning against the woman and
100 lashes and banishment for one year against the man (Ibn Rushd, Bidāyat Al-‐Mujtahid
56.6.2). And while Koran 5:90 prohibits the consumption of wine, a corporal penalty for
drinking alcohol was only devised much later, also on the basis of an oral tradition (Ibn-‐
‘Asqālani, Bulūgh Al-‐Maram 1064-‐66). Islamic law’s adoption of the lex talionis facilitated
the use of dismemberment in several cases, although in some instances, especially under
Shiite law, the penalty could be commuted into a fine. Dismemberment was also prescribed
to fulfill the penal goals of incapacitation and deterrence, as in the case of theft: “[As for]
the thief, the male and the female, amputate their hands in recompense for what they
committed as a deterrent [punishment] from Allah” (Koran 5:38). Last, Koran 5:33 lists
cutting off the opposite hand and foot (cross-‐amputation) as one among several penalties
that can be imposed upon anyone found guilty of corruption. Beyond these contexts
corporal punishment in any form could be applied as a discretionary punishment whenever
a defendant was awarded ta‘zīr. Depending on the inclinations of a particular legal school,
this could in theory be frequent, but in practice was subject to Islamic law’s strict rules of

evidence. As in Judaism, so in Islam, corporal punishment consolidated its status as a staple
penalty in the Middle Ages and so it remained throughout the early modern period, for
instance under the Ottoman Empire. In some Muslim countries colonization by Western
powers as well as independent state-‐building brought pressure upon legislators and judges
to mitigate corporal punishment by its commutation into fines, especially in the case of
women, and by replacing penal amputation with incarceration. Today corporal punishment
continues to be practiced in several Muslim countries, especially wherever Shari‘a law
prevails as state law, for instance in Saudi Arabia, Yemen, Sudan, northern Nigeria, Iran, and
Pakistan (Peters, 2005).

Early Christianity’s blanket rejection of capital and corporal punishment (sine vi humana) in
favor of, for instance, abstinence and incarceration, was to some extent at odds with
hitherto-‐prevailing notions of retributive justice, both Jewish and pagan. Yet physical pain
did not disappear from the ecclesiastical penal landscape altogether. Church leaders and,
later, Canon lawyers promoted the use of, inter alia, severe fasts, flagellation (also self-‐
inflicted), and exposure to extreme weather as ways to foster discipline and “medicate”
against sin, first within ascetic and monastic milieus, and later among laymen (Hillner, 2009).
From the perspective of a Greco-‐Roman class-‐based penal tradition, there surely was
something deeply humiliating in free people’s willingness to submit to physical pain; and
this perspective was not lost on early Church leaders, who, on the one hand, construed such
afflictions as a “sweet inversion” of a pagan cultural taboo and, on the other, emphasized
continuity with a biblical tradition (albeit one concerning the discipline of children rather
than the punishment of criminals). Either way, throughout the Middle Ages corporal
punishment within the Church appears to have been mostly limited to the regular clergy
(monks) and rarely practiced among the secular clergy (priests) unless their punishment also
involved cloistering. The Church’s capacity to apply its own range of penalties among lay
people in this period varied widely across space and time, but some records suggest that
corporal punishment was occasionally applied as a main or additional measure (Plöchl,
1955). From a broader cultural perspective, the notion that spiritual purgation involves
physical pain continued to have wide purchase, as did the perceived causal relation between
sin and divinely-‐inflicted physical suffering, both of which were articulated and popularized
throughout the Middle Ages, reaching an apogee of sorts in Dante’s Comedy, published in
the early fourteenth century. The end of Roman-‐Catholic hegemony in sixteenth-‐century
Europe, along with the rise of the Absolutist state, led not, as is often thought, to the overall
contraction of religious law, including the regulation of corporal punishment. For, while the
early modern period saw an increased policing of public morals by secular powers (the so-‐
called criminalization of sin), it also witnessed an intensification of congregationally-‐based
discipline, especially (but not exclusively) where state-‐churches were absent, as in the Dutch
Republic (Schilling, 1987). Neither process entailed a significant change in the role of
corporal punishment, despite criminal law’s renewed commitment to bloodless penalties

under Protestant influences. Flogging and the stocks, for instance, remained minor and thus
largely stable measures employed in a Christian penal context (Pihlajamäki, 2006).

Pre-‐Modern Europe

While Europe grew increasingly more homogeneous since Late Antiquity in religious terms,
it also came to be characterized by political fragmentation and a concomitant legal pluralism.
Different polities, occasionally conquering one another, operated under an array of
traditions, including Roman and customary laws, which, juxtaposed with a more centralized
Church, shaped a diverse legal and penal landscape (Berman, 1983). Contrary to popular
opinion on the matter, the role of corporal punishment among these regimes was quite
limited (Dean, 2001); nor, once again, is it possible to trace a general decline in its use as a
legal punishment throughout this period. The early medieval statutes contained in Rothair’s
Edict (643), for instance, display a typically strong preference for monetary compensation
according to social rank (wergild) and functional damage, while later collections of German
and French customary laws such as the Sachsenspiegel (c. 1220) and Louis IX’s
Etablissements (c. 1254), appear to have no qualms with dismemberment and branding.
Among the Italian city-‐states in the fourteenth and fifteenth centuries, on the other hand,
branding, amputations, and flogging were rare, and punishments tended to be
overwhelmingly pecuniary (Dean, 2007; but see Piasentini, 1992), while in England, by the
mid thirteenth century, mutilations practiced under Norman rule had all but disappeared,
only to rise again to prominence under the Tudors in the late fifteenth and sixteenth
centuries (Bellamy, 1973). The latter trend found a chronological parallel in the Netherlands,
where branding and, more commonly, whipping were carried out both secretly and in public,
and often accompanied by exposure on the scaffold (Spierenburg, 1984). Last, throughout
the Habsburg Empire, the enacted Constitutio Criminalis Carolina (c. 1532) paved the way
for a broader use of judicial torture and corporal punishment (§§101, 104, 196-‐98), as was
the wont of ever more powerful monarchs in France (Langbein, 1974).

Modernity

It was thus perhaps more in response to the penal realities of the early modern period,
rather than to any perennial pre-‐modern state of affairs, that Enlightenment figures such as
Cesare Beccaria (1738-‐1794), Jeremy Bentham (1748-‐1832), and others developed their
revisionist views on punishment. Overall, these reformers rejected physical pain as a licit
form of retribution or as a means to affect real psychological and behavioral change in favor
of the more malleable punishment of incarceration. In the long run the development of
penal incarceration in Europe, and later in the US, was accompanied by dramatically
reduced recourse to overt corporal punishment (Andrews, 1994), although imprisonment

itself entailed (and continues to pose) numerous physical risks and hardships. While these
reforms gradually contributed to the reshaping of Europe’s penal landscape, Western
colonial powers abroad remained quite tolerant and often even promoted the use of
corporal punishment among indigenous populations across Africa, Asia, and the Americas,
whether or not such measures predated their arrival (Benton, 2002; Peters, 2005). Judicial
caning in present-‐day Singapore, Malaysia, and Brunei, for instance, can be traced back to
British rule, although the measure has since become both a mandatory and a discretionary
penalty, and its application has accordingly experienced a sharp rise. By the early nineteenth
century, certain forms of corporal punishment such as amputation and branding had
become a marginal measure in Western penology, as against a rise in the use of, on the one
hand, imprisonment and, at least for a while, capital punishment (Weisser, 1979). From a
global perspective, however, flogging and beating still occupy a prominent role as a main or
additional penalty in numerous countries, whereas in others they have been only recently
banned. The last documented public whipping that took place in Delaware, for instance,
dates to 1952, but the law allowing it was cancelled as recently as 1972.

There are other indications for the longevity of corporal punishment, which, as we have
seen, for thousands of years has been a staple of summary justice and discipline in the semi-‐
public and professional spheres, to say nothing of the private and domestic ones. Child
psychologists and psychiatrists employ the term corporal punishment mostly to the chagrin
of crime and punishment scholars (Ellison and Sherkat, 1993; Strauss, 1994), who argue that
transgressions in these environments rarely constitute crimes and consequently their
desserts cannot be construed as punishments. Whipping a child for uttering profanity is a
disciplinary measure meant to foster a certain behavioral norm that may or may not be
strongly frowned upon outside the school or home; and slapping a spouse for sexual
infidelity has less to do with enforcing a law than with expressing shame or frustration over
a given situation. Conversely, and by comparison with the treatment of slaves in earlier
periods, the law in many countries does not consider such measures as a form of summary
justice. However, in certain domains such as the home and the school and in the religious
and professional spheres, disciplinary action reflects (and in the past has certainly informed)
mechanisms, procedures, and power structures in the world outside. In this sense non-‐
public disciplinary action, including the use of corporal punishment, offers a political
education and helps shape new generations’ ideas concerning licit and illicit penalties.
Conversely, penalties meted out by the state are often in tune with those employed in
domestic, religious, and professional contexts. Thus a broad consensus regarding the need
to protect children from domestic violence, for instance, is more apparent than real. As of
January 2012, only 32 countries offer children full legal protection from corporal
punishment. Despite no lack of local and global advocacy efforts, societies where corporal
punishment is not applied to children remain the exception rather than the rule (Motague,
1978).

From this perspective, the still prevalent use of corporal punishment (spanking, belting,
slapping, whipping, etc.) in many milieus is significant. Rather than reduce it to a sign of
immigrant maladjustment or attribute it to psychopathologies it can also be interpreted as
an enduring toleration and in some cases growing appreciation of physical pain as a
legitimate disciplinary measure. In many present-‐day societies the use of physical force by
authority figures remains a battleground for competing truth claims about discipline and
cultural identity. Despite consistent and growing evidence of spanking’s negative short-‐,
medium-‐, and long-‐term effects on children’s mental health (McCord, 1995; Afifi, et al.,
2012), parents, guardians, and community leaders continue to advocate it for two main
reasons: First, it is irresistibly effective; children generally stop performing an undesirable
action with alacrity after being struck. Secondly, it is condoned by certain authorities who
lay claim to superiority on such matters at least in the domestic, academic, or religious
sphere (Pearl, 1994). For instance, among those drawing inspiration from the Old Testament
some are reluctant to deny that “He who spares the rod, hates his child” (Proverbs 13:24).
Cultural but not necessarily religious conservatives exhibit a similar attitude: the ban on
corporal punishment in UK private schools was effected as recently as 1998 and by a narrow
majority at that. And in the US, spanking is still the default prerogative of schools in a
number of states. To these persistent forces countering the rejection of corporal
punishment in homes and schools—and by implication in the public sphere—one must add
an even wider faith in violence as a legitimate means to resolving disputes, the right to
privacy, and religious and cultural autonomy (Strauss, 1991). As we edge into the twenty-‐
first century, the high regard in which numerous societies continue to hold each of these
principles suggests the durable attractiveness of corporal punishment. Modern penology
may have encouraged a rethinking of the link between physical pain and punishment, but it
has hardly been able to sever the two (Garland, 2011).